Standard Form of Agreement for the Sale, Supply, Provision & Use of Telecommunications Services & Products
These terms & conditions are a Standard Form of Agreement for the purposes of Section 479 of the Telecommunications Act 1997. We will supply the customer (‘You’ or ‘Your’) services on the terms & conditions set out below (the ‘Agreement’). Undefined words have the same meaning as in the Telecommunications Act 1997. Unless specified, these terms & conditions apply to all Services provided by Us.
1.0 Service Description
1.1 We will connect Your Service(s) to the network as soon as reasonably practicable after Our acceptance of Your application and will use all reasonable efforts to maintain the Service while You comply with this Agreement.
1.2 On an Unbundled Local Loop Service (ULL), We will provide the telecommunications service(s) as indicated in the Application to You in Australia through such Carrier or Supplier network as We nominate from time to time. Where carriage is supplied, the quality will be the same as that of the Carrier or Supplier.
1.3 Where We are providing data services, the access component and, optionally, a rented Customer Premises Equipment (CPE) router, are supplied to Us by a third party as a wholesale Supplier.
1.4 You must not resupply any of the Services without Our express written agreement.
1.5 Where there is any exclusion or inconsistency between the terms of particular services and the Standard Form of Agreement, the latter shall prevail to the extent of any such inconsistency.
1.6 Service is not available in all areas. Actual speeds depend on your equipment, line quality and location, distance from the local exchange, applications in use, and the capacity of Our systems and the internet generally. You should not expect actual speeds to be at or near the theoretical maximum.
2.0 Billing, Charges & Payments
2.1 Charges are determined in accordance with the plan rate or by Your acceptance of Our services via online application. We may change charges or add new charges in accordance with clause 6. You will be invoiced monthly with 7 days trading terms unless otherwise specified. If you have nominated automatic debit, Your credit card will be charged on the invoice date.
2.1.2 Invoices are generated at the beginning of each month and emailed to Your nominated address. New services are billed from the date of provisioning to the end of that month. Miscellaneous charges are billed on the same day they occur.
2.2 Any charges billed to You after cancellation from Your previous provider will remain due and payable to that provider.
2.3 Our charges may include connection, initiation, transfer, relocation or cancellation fees. Where not specified in Your rate plan, such charges will be passed through at cost from the Carrier.
2.4 Overdue accounts will incur a late fee of the greater of $10 + GST or 1.5% per month on the outstanding amount. We may also charge interest at 3% above the Commonwealth Bank Corporate Overdraft Reference rate, calculated daily.
2.5 We may, without notice, deactivate or cancel all or part of Your Service if any amount is not paid by its due date. We reserve the right to restrict any Service if the account exceeds its credit limit or appears fraudulent. Discounts may be revoked during the overdue period.
2.6 If You default, We may use Your personal information to assist in debt recovery. You agree to pay all costs associated with recovery of outstanding amounts, including collections agency fees and legal costs.
2.7 The person signing this agreement on Your behalf jointly and severally guarantees payment of all monies due to Us. This is a continuing guarantee and shall not be affected by any indulgence We grant to You.
2.8 If You are uncontactable for an extended period, it remains Your responsibility to keep Your account current. Fantel Pty Ltd may, at its discretion, disconnect Your Service if Your account falls into arrears while You are uncontactable.
2.9 A $2 + GST Invoice Processing and Handling Fee applies when an invoice is generated and Our billing system does not automatically debit a credit card. To avoid this charge, provide Your credit card details and authorise Us to debit the nominated card on invoice generation.
2.10 If You withdraw Your order after provisioning has reached the Point of No Return (PONR), You will be liable for connection charges, if any, plus the early termination fee.
3.0 GST
Unless expressly stated otherwise, all charges under this Agreement are inclusive of GST.
4.0 Transfer To Us
4.1 Where We need to change Your arrangements with Your current supplier to provide the Services, We will do so in accordance with this clause.
4.2 By signing the Application or any agreement for Services by Us, You authorise Us to sign on Your behalf all forms of authority required to transfer the Services into Our name, and You agree to immediately pay Your current supplier all amounts owing up to the time of transfer.
4.3 Applying through Our online applications at www.fantel.com.au constitutes Your agreement to Our terms & conditions. You should ensure that You and any nominee have read and understood these terms.
5.0 Transfer From Us
5.1 If You transfer any Services to another provider, You remain responsible for amounts payable to Us until the end of Your contract term. Full payment is due within 14 days from the date of transfer.
5.2 The provision of Services ceases when We transfer those Services to another supplier, provided You have fulfilled Your contractual obligations.
5.3 We will bill You for those Services within the next normal billing period.
5.4 If additional charges arise for Services up to the date of transfer, You will immediately pay Us all such amounts on receipt of Our invoice.
6.0 Amendments to the Terms & Conditions
6.1 These Terms & Conditions and the Acceptable Usage Policy are subject to change. Where changes would cause detriment to You, We will notify You at least 30 days in advance. If You do not agree with the changes, You may terminate this Agreement by notifying Us within 14 days of Our notice. Continued use of the Service beyond the date of change constitutes acceptance of it.
6.2 Without notice, We may at any time change the Carrier, Supplier, or their respective products.
6.3 Any alterations made during a Fixed Term Agreement will not apply to that term. The terms applicable are those published on www.fantel.com.au at the date You entered into Your Fixed Term Agreement.
7.0 Privacy
7.1 Fantel Pty Ltd adheres fully to the Privacy Act in regard to the way We collect, use and disclose information about You.
8.0 Information
8.1 You consent to Us and Our Carriers or Suppliers exchanging Your information and details for Our own purposes.
8.2 You authorise Carriers or Suppliers to disclose to Us all records, including exchange line, mobile or network details, telephone usage, accounts information, communication usage records and call event records.
8.3 You consent to Us disclosing Your information to any Australian telecommunications service provider who is a member of the Australian Telecommunications Fraud & Risk Association where there are reasonable grounds to suspect fraudulent activity.
9.0 Credit Check
9.1 You will supply without delay all information necessary to check Your credit rating.
9.2 You agree to Us obtaining a credit report from a credit-reporting agency if We consider it relevant to assessing Your application.
9.3 You agree that We may give to and seek from any credit provider and/or credit-reporting agency any credit report on all parties named in the application, including information regarding creditworthiness, credit history or credit capacity as permitted under the Privacy Act.
9.4 You authorise Us to make independent enquiries of third parties concerning Your financial standing and permit those third parties to supply such information regardless of any applicable confidentiality or privilege.
10.0 Limitation of Liability
10.1 To the full extent permitted by law, We will not be liable for:
(a) any economic loss, including loss of revenue, profits, business opportunities or anticipated savings;
(b) any indirect or consequential loss;
(c) acts or omissions of the Carrier or any of Our servants, officers, agents, contractors or subcontractors, or failure of any telecommunications service, network or equipment;
(d) Our failure to continue to provide the Service for any reason. You acknowledge that We do not guarantee continuous, fault-free provision of the Service.
10.2 We accept liability in respect of rights conferred by the Trade Practices Act 1974 and similar legislation where required by law. Otherwise, We limit Our liability, where permitted, to re-supply of the services or goods, repair or replacement, or payment of the cost of same.
10.3 You agree to indemnify Us against all liability, loss and damages caused directly or indirectly by any breach of this Agreement or by any negligence, fraud or wilful act by You or Your agents.
10.4 Your indemnity survives termination of this Agreement against any actions, claims, expenses, demands, costs, damages, proceedings or liability connected with Your use of the services or CPE.
10.5 The provisions of clause 10 also apply for the benefit of the Carrier, to the extent permitted by law.
10.6 In connection with legally requested interception of Your service, You indemnify Us for all costs, damages or expenses resulting from Your negligent, wilful or unlawful acts or omissions.
11.0 Term, Suspension, Cancellation & Termination
11.1 This Agreement commences on the date of submission or service commencement (whichever is later) and continues until expiry of the contract term, then continues indefinitely unless terminated formally in writing with 30 days notice, unless otherwise stated.
11.2 The period the Agreement is effective in accordance with clause 11.1 is the Term.
11.3 We may terminate this Agreement if You breach any term or condition, or if a receiver, liquidator or provisional liquidator is appointed, or if You enter into arrangements with creditors, or assign Your rights without Our prior written consent.
11.4 We may suspend the Services without notice if:
(a) We are not satisfied with Our credit assessment of You;
(b) You breach any terms or conditions and fail to remedy the breach within 10 days of written notice;
(c) You fail to pay amounts owing by the due date;
(d) We are unable, for any reason including Carrier default, to provide the Service;
(e) You become subject to any form of insolvency administration.
11.5 If We suspend the Services, You remain liable for all monies due during the suspension period.
11.6 If Your Service is suspended due to non-compliance, a reactivation fee of $33 (GST inc) may apply.
11.7 If this Agreement is cancelled by You or terminated by Us:
(a) any rights We hold in respect of Your unfulfilled obligations continue to exist;
(b) if You terminate before the end of the agreed term, You agree to pay the full amount that would have been payable for the remainder of the Agreement within 14 days;
(c) if the Agreement includes rental equipment, You must return all such equipment within 14 days of termination. Failure to do so may result in an invoice for the retail value of unreturned equipment.
11.8 If We provide a Service for a Fixed Period, the full amount for that period is a debt owing to Us at the time of entering the Agreement.
11.9 Where You have agreed to purchase 2 or more products and cancel one during the Term, the pricing of remaining products will revert to the non-bundled rate for the remainder of the Term.
11.10 Where We are providing Data Services and this Agreement is terminated, the Carrier may arrange to supply You directly, on the Carrier’s current rates and terms.
11.11 While within the contract period, You may only change to a higher plan.
12.0 Removable Discount
12.1 If We provide a Service at a discount over a Fixed Period and You cancel before that period ends, You will be liable to pay the full undiscounted amount for the elapsed period. We will bill You for the discount amount allowed during that period on Your next bill.
13.0 Confidentiality
13.1 You will keep confidential all information supplied by the Carrier or Us.
14.0 Force Majeure
14.1 We will not be liable for any delay or failure in Services due to any occurrence reasonably beyond Our control, including failure of any link provided by the Carrier.
15.0 Entire Agreement
15.1 This Agreement contains the entire understanding between You and Us, excluding all prior or collateral agreements relating to the Services, whether oral or written.
15.2 If any part of this Agreement is found to be invalid or unenforceable, the remainder retains full force and effect.
15.3 Where a Service-specific term conflicts with another term in this Agreement, the Service-specific term will apply.
16.0 Assignment
16.1 We may assign the benefit of this Agreement at any time to a person or corporation nominated by Us, including a Carrier. The Assignee or nominated Carrier will then deal directly with You for the provision of Services under this Agreement.
17.0 Customer Premises Equipment (CPE)
CPE refers to telephone handsets, indoor access routers, modems and related software.
17.1 Any CPE You use that was not provided by Us must comply with all applicable standards and specifications, including those set by the Carrier or Supplier.
17.2 We may substitute or modify any component of the CPE prior to delivery without consultation if the change will not adversely affect performance, alter configuration in a material way, or prejudice Your rights under this Agreement.
17.3 Risk in any CPE provided by Us passes to You upon delivery.
17.4 Title to any CPE purchased from Us does not pass to You until all amounts owing have been paid in full.
17.5 You grant Us irrevocable leave and licence to enter premises occupied by You, using reasonable force if necessary, to inspect, search for and re-take possession of any CPE for which payment is overdue.
17.6 On termination of this Agreement, You will immediately return all CPE that is Our property.
17.7
(a) We will use Our best endeavours to deliver CPE on the Delivery Date during Your normal business hours.
(b) If You wish delivery to a location other than the site, You must request this on the Application Form.
(c) Requests to advance or postpone delivery will be accommodated where reasonably possible.
(d) If We request early delivery, You will use Your best endeavours to prepare the site and accept early delivery.
17.9
(a) Where installation requirements exceed reasonable expectations for any quoted Installation Fee, We are not bound to provide installation at the previously quoted fee and will discuss a revised fee with You.
(b) You agree to obtain and maintain, at Your expense, all permits, licences and approvals required for the installation and operation of the CPE.
(c) Where You are relocating premises, We may allow You to move the CPE to the new premises subject to Our ability to provide the service there, Your agreement that these terms apply at the new premises, and Your payment of all relocation costs.
17.10
(a) CPE does not include goods or services specified as excluded in the Quotation.
(b) Additional services such as inspections, repairs and replacements may be requested and, if agreed, will be provided on a time and materials basis at Our standard rates.
(c) Any subsequent agreement for additional services will not modify the terms of this Agreement unless agreed in writing.
17.11
(a) We warrant that the CPE is free from defects in materials and workmanship at the date of this Agreement.
(b) You may notify Us in writing of any defect during the Warranty Period. We will inspect, replace or repair the CPE at no additional charge as soon as practicable.
(c) The warranty does not apply where the defect results from improper use, operation contrary to instructions, unauthorised modification, use contrary to law, unusual physical or electrical stress, reinstallation by an unauthorised person, use by a person other than You, failure to comply with this Agreement, or failure to install recommended engineering changes.
(e) If an inspection reveals no defect following a warranty claim, the costs of that inspection will be borne by You.
(f) The warranty in this clause may, at Our option, be varied or replaced by specific warranty conditions issued in respect of the CPE.
17.12 We are not liable for faulty CPE provided by a third-party manufacturer. Where You experience a CPE fault, You should contact the manufacturer directly. Contact details may be available at www.fantel.com.au.
18.0 Notices
18.1 Any notice, demand, consent or other communication must be delivered personally or sent by email, prepaid mail, or facsimile to the address of the other party as last notified.
19.0 Governing Law
19.1 This Agreement is governed by the laws of New South Wales. Both parties submit to the jurisdiction of the Courts of that State.
20.0 Disputed Amounts
20.1 In the event of a billing dispute, You agree to pay the total amount on the disputed bill without deduction. We agree to refund any amounts found to have been charged incorrectly after investigation.
20.2 Billing disputes not raised within 3 months of the bill issue date will be deemed correct and payable.
21.0 Communications & Content
21.1 You are responsible for the content of messages You communicate using Our Services. You agree not to use Our Services for activities that are illegal, obscene, threatening, defamatory, privacy-invading, or otherwise injurious to third parties. We reserve the right to suspend or terminate the Service for breach of this clause.
21.2 Correspondence and emails from Us or related parties form part of Our service. If You do not wish to receive commercial communications, contact Us to unsubscribe. This does not affect operational communications regarding Your account or service.
22.0 Reserved
23.0 Reserved
24.0 Installation & Programming of Equipment
24.1 Where We are providing fixed wire Services, You will assist Us in ensuring all necessary equipment is installed and programmed so that calls to destinations nominated by Us are carried by Our preferred network.
24.2 Where We are providing data and/or broadband Services, You will assist Us in ensuring all necessary equipment is installed and maintained.
25.0 Reserved
26.0 Reserved
27.0 Conditions of Data and/or Broadband Service
27.1 We may provide the Service using either an Unbundled Local Loop Service (ULLS) or an existing or new access line providing a standard telephone service from Telstra or another reseller, depending on technical and operational requirements.
27.3 Where a telephone exchange area is shown as broadband-enabled, there is no guarantee that individual telephone services from that exchange will qualify for DSL service provision.
27.4 The performance of services over DSL is determined by line quality and distance from the exchange. Performance can only be estimated until line qualification is complete.
27.5 Delivery times assume service availability and no Carrier delays. If service qualification is unsuccessful following submission of Your order, a revised proposal may be provided that may differ from the original and may incur additional charges.
28.0 Acceptable Use of Internet, Data and/or Broadband Service
In addition to clause 21.0, You agree to the following acceptable use standards. You agree not to:
28.1 Send email that may destroy or damage a recipient’s computer.
28.2 Knowingly accept email that is unlawful or violates the rights of any person or corporation.
28.3 Reveal confidential information about Us or Our suppliers that may result in unauthorised use of the Services.
28.4 Transmit information containing viruses or other harmful components.
28.5 Interfere with, damage or destroy the computer systems or operations of the Services, including those of other users or third parties.
28.6 Store or transmit any unlawful, threatening, defamatory, offensive or pornographic material that constitutes a criminal or civil offence under State or Commonwealth laws.
29.0 Network Security
29.1 You accept responsibility and liability for the security of and access to Your networks and related systems, and will take reasonable precautions to prevent security violations.
29.2 We do not accept responsibility or liability for any violations of Your network or related systems security, however caused.
29.3 While We are responsible for the provision of services, You are responsible for ensuring adequate virus protection and firewalls exist to protect Your electronic data and computer systems against unauthorised intrusion.
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